David A. Wheeler's Blog

Wed, 22 Apr 2009

There’s a move afoot to argue that copyright infringement penalties should
bear a rational relationship to the value of what was infringed.
You might think that this could harm Free/Libre/Open Source Software
(FLOSS), but I don’t think so.
Here’s why.

Frankly, I think the FSF and Tenenbaum have a reasonable argument on this point.
People who shoplift a CD from a store would definitely pay penalties when
caught, but those penalties would bear some relationship to the value of the
property stolen, and would be far smaller than a file-sharer.
This notion that the “punishment should fit the crime” is certainly not new;
Proverbs 6:30-31 talks about thieves paying sevenfold if they are caught.
That doesn’t make such actions right - but unjust
penalties aren’t right either.
I think a lot of the problem is that copyright laws were originally
written when only rich people with printing presses could really
make and distribute many copies of material.
Today,
8-year-olds can distribute as much information as the New York Times, and
the law hasn’t caught up.

But does the FSF risk subverting Free/Libre/Open Source Software (FLOSS)
by making this argument?
After all, FLOSS developers also depend on copyright law to enforce
certain conditions, and often charge $0 for copies of their software.
If the penalties would be limited to “7 times the original cost”,
would that make FLOSS development impossible?

I don’t think there’s any problem, but for some people that may not be obvious.
The difference is that in a typical music copyright infringement case,
the filesharer could purchase the right to do what they’re doing for
a relatively low price, something typically not true for FLOSS.
For example, under normal circumstances
it’s perfectly legal to buy a song for $1, and then transfer that
song to someone else (as long as you destroy your own copies),
so sharing that song with 10 people is legal after paying $10.

In contrast, violations of FLOSS licenses often can’t be made
legal by simply buying the rights.
If you violate the revised BSD license by removing all credits to the
original author, there’s typically no “alternative” legal
version available for sale without the author credits.
(Indeed, under legal systems with strict “moral rights” it may not even be
possible.)
Similarly, if you violate the GPL by releasing binary software yet
refusing to release its source code,
there’s often no way to pay additional money
to the original authors for that privilege.
In some cases, GPL’ed software is released via a dual-use license
(e.g., “GPL or proprietary”), with the proprietary version costing additional
money; in those cases you do have a
value that you can compare against.
In cases where there is a value you can compare against, then
you should use that value to help determine the penalty.
Otherwise, a much stiffer penalty is justified, because there is no
method for the infringer to “buy” his or her way out, and their
actions risk making functional products (not just entertainment) unsupportable.
As noted in the
United States Court of Appeals for the Federal Circuit case 2008-1001,
JACOBSEN v. KATZER,
the court essentially
found that failing to obey the conditions of an open source software
license led to copyright infringement.
(For more on this particular case,
see New Open Source Legal Decision: Jacobsen & Katzer and How Model Train Software Will Have an Important Effect on Open Source Licensing.)

So I think that it does make sense to limit copyright
penalties based on the value of the original infringed item… but
that doing so does not (necessarily) put FLOSS development processes
at risk.